The Faculty Lounge

Will Success Spoil The Chicago (Law) School?

Semi-interesting article in Bloomberg Businessweek

 

Necropolis in Agrigento

Because he knows of my love of cemeteries, my colleague Bill Turnier has sent along this photograph of the necropolis in Agrigento.

Searching for Evidence of the Bray School

Longtime readers of the faculty lounge may recall that I've been following Terry Meyers' research on the Bray School, which was an eighteenth century school for African American children in Williamsburg.  Terry's been writing for some time about the pro-slavery and anti-slavery ideas in circulation in Williamsburg and at William and Mary.  This summer William and Mary and Colonial Williamsburg are conducting an archeological dig to see if they can locate the school's location.  Cribbinow now from a recent press reslease:

Work began on May 29 in the garden area to the south of Brown Hall, a William & Mary dormitory known to be the original site of the Digges House. The project began with shovel testing, excavating small holes every five meters.

“The idea is to get a little glimpse over a broad area of where there might be artifacts or features that potentially relate to the school and then based on that information, we’ll dig larger units,” Kostro explained.

The BSAP’s first day of shovel testing brought up a number of artifacts, including beads, ceramic fragments, the inner workings of a watch and parts of smoking pipes—but nothing dating to the time of the Bray School, Norman said.

 

Weird and Wonderful Books I've Discovered This Summer

Usually, I'm turning my mind to summer reading in late May/early June and this year is no different.  But for some reason, probably because I've started foraying into sci-fi and fantasy of late, I've discovered some really great and lesser known (at least in my limited experience) writers.  I can highly recommend pretty much anything by Octavia Butler, the first African-American female author to have won major awards in the sci-fi field.  I just finished her Patternist series which was incredibly original and engaging.  I also read The Vampire Tapestry by Suzy Charnas McKee, which was written long before the current sparkly-vampire craze and is a subdued narrative dealing with the etymology of vampires - or at least of one vampire.

And in terms of more recent releases, I had hummed and hawed about whether to read The Scorpio Races by Maggie Stiefvater - better known for her unusual take on young adult werewolf/romance in her Shiver trilogy.  While undeniably YA in focus, The Scorpio Races is engaging to an older audinece as well and cleverly weaves together mythology about water horses, other celtic legends, and includes just a few Shakespearean allusions as well.  It surprised me by being a poetic and cleverly written book that was much more engaging than I had expected.

Any other unusual reads people have come across lately?

Call For Papers: Affordable Care Act

The Public Affairs Quarterly has issued a Call for Papers on issues relating the constitutionality of the Affordable Care Act.  I have posted the call in its entirety after the jump.  Interested authors need only submit an abstract.

Erben on A Harmony of the Spirits

As I sit here working on Francis Daniel Pastorius this afternoon, I see that Patrick Erben's A New Harmony of the Spirits has just been published by UNC Press.  Cribbing now from the UNC website:

In early Pennsylvania, translation served as a utopian tool creating harmony across linguistic, religious, and ethnic differences. Patrick Erben challenges the long-standing historical myth--first promulgated by Benjamin Franklin--that language diversity posed a threat to communal coherence. He deftly traces the pansophist and Neoplatonist philosophies of European reformers that informed the radical English and German Protestants who founded the "holy experiment." Their belief in hidden yet persistent links between human language and the word of God impelled their vision of a common spiritual idiom. Translation became the search for underlying correspondences between diverse human expressions of the divine and served as a model for reconciliation and inclusiveness.

Drawing on German and English archival sources, Erben examines iconic translations that engendered community in colonial Pennsylvania, including William Penn's translingual promotional literature, Francis Daniel Pastorius's multilingual poetics, Ephrata's "angelic" singing and transcendent calligraphy, the Moravians' polyglot missions, and the common language of suffering for peace among Quakers, Pietists, and Mennonites. By revealing a mystical quest for unity, Erben presents a compelling counternarrative to monolingualism and Enlightenment empiricism in eighteenth-century America.

I'm looking forward to reading this soon!

The Movie was Better than the Book?

I've just read an interview from The Paris Review with Gabriel Garcia Marquez in which he states that:  "I can't think of any one film that improved on a good novel, but I can think of many good films that came from very bad novels."

He doesn't give any examples of the latter ie good films from bad novels.  Can anyone think of any?  Usually I think films aren't as good as the books they are based on. 

Courthouse Trivia

Well, we're deep in the scholarship producing season, so perhaps it is time for a little trivia?  How about courthouse trivia?  We haven't done that in a while.  What's the courthouse at right?  I took this a while back without knowing that a famous Supreme Court case began in this courthouse.  It was only later that someone alerted me to the courthouse's importance.  What is that case?

I don't think this is making the question too easy to say, look at the Confederate monument out front of the courthouse.  No soldier, just an obelisk.  Hmm....

IP Chair Search

I am pleased to announce the formation of a search committee for the first endowed chair created by the gift of Robert H. McKinney to the (aptly named) Indiana University Robert H. McKinney School of Law.  The chair will be in Intellectual Property, and the holder also will serve as the Director of our Intellectual Property and Innovation Center.  We are looking for a tenured scholar with a distinguished record of teaching, research, and service.  Please forward a cv or any questions to the search committee chair, Gerard Magliocca, at gmaglioc@iupui.edu.

More on Airlines ...

I know I'm always picking on airlines, but I just had to share my favorite of the recent British Airways ads for their "height cuisine" program that focuses on making food more palatable in the air.  There's a whole cuisine-development program and series of ads, but my absolute fave focuses on the importance of a good mile high cheese ...

 

And while I'm on airlines, is anyone else bothered by the current United Airlines pre-recorded safety video which advises that if you're seated in an exit row and don't want to assist in case of emergency, please "ask your flight attendant to be reseated".  I'm not sure how re-seating a flight attendant would help in that scenario!

Sci-Fi Author Ray Bradbury Dies at Age 91

Because I know there's a few closet sci-fi fans in law professor land, I wanted to note the passing of Ray Bradbury last night at the age of 91.  Despite ill health in his later years he was writing until the end.  He was one of the pioneers in his genre.  Even folks not addicted to sci-fi probably studied Farenheit 451 at school.  His work will live on.

Reidsville Confederate Statue Lawsuit

Here's the latest on a lawsuit regarding the replacement of a Confederate statue that was damaged last year. 

Cameron McWhirter has an extensive story on this in the Wall Street Journal.  Cribbing now a little from the article: 

The statue's owner—the United Daughters of the Confederacy, which collected $105,000 in insurance money for the piece—plans to repair the base of the monument, replace the statue and move the whole thing to a cemetery away from downtown. The statue's broken pieces now lie in the city's public-works yard.

City officials, who say they have no authority over the statue, applaud the UDC decision. "Once it's down, I think it sends the wrong message to put it back up," said James Festerman, the 69-year-old white mayor of a city that is 42% black. "I don't want industries that might want to move here to think this is a little town still fighting the Civil War."

Couple of things worth commenting on here -- I'm not sure why the UDC is still considered the owner of the statue.  I think that basically the city is basically not asserting owner so that the city doesn't have to deal with this, because usually a monument placed on public property becomes public property.  Second, I'm not sure why that private preservation group would have standing to challenge the city's -- or the UDC's -- decision.  Leaving the legal issues aside, this is an instance in which the UDC is being accused to bowing to political correctness in not wanting to put the statute back in the center of Reidsville.  I think that's astonishing that the UDC is now being criticized for being insufficiently staunch in its support of southern heritage.

Three other thoughts, which are inspired by this youtube video prepared by supporters of putting the repaired statue back (or replacing it).  First, I think it should be kept in the center of town as a reminder of the era of slavery and Civil War.  On this I'm in agreement with the Sons of Confederate Veterans.  Perhaps this is the only thing where I agree with them.  Probably is, now that I think about this.  Second, the music used to accompany the video is the Battle Hymn of the Republic.  That's a Northern song.  Third, I love the words "no voice" that accompany the video at 5:18 because that's the about amount of voice that African Americans had in North Carolina politics around 1910 when the mounment was placed there.  In deciding on keeping a monument we should look to a series of factors, including the meaning at the time and who had a say in its placement, as well as its meaning today and its significance as part of the landscape today.  (For more background on this, see Danielle Battaglia's article here.)

Anyway, this is just another sign  that monument law continues to rivet our attention! (And some older thoughts here.)  The image is of the roundabout in Reidsville where the Confederate statue stood.  (And here's another article on the dismissal of the complaint against the NC Department of Transporation and the Department of Cultural Resources.  No surprise, obviously.)

What Should Blacks Have Done about Percy Greene and Rev. H. H. Humes?

In the 1950s both Percy Greene and Rev. H. H. Humes, two prominent blacks in Mississippi who edited black newspapers in the state, served as paid informants of sorts to the Mississippi Sovereignty Commission.  (For those who don’t know, the MSC was a white supremacist organization dedicated to stunting the aims of the Civil Rights Movement.)  By informants, I mean they reported to the MSC on the local black community’s endeavors to lessen the burdens of anti-black racism.  Both Greene and Humes, moreover, used their newspapers to criticize black leaders, including Martin Luther King Jr., and the integrationist work of the NAACP. 

How should blacks in Mississippi at the time have dealt with Greene and Humes?

One of the things blacks in the state and elsewhere did was call them both Uncle Toms and brand them as race traitors.  This marganalizes them and also reduces the likelihood that others would follow their lead and take money from white supremacist organizations.

Was branding these two as race traitors something you could condone?  If not, why?  And if blacks can’t police loyalty, do you similarly disagree with American laws against treason?

Latest on the North Carolina Sterilization Victims Compensation Act

Thanks to Mark Bold I see that the House has just passed an act to compensation people sterilized under the authority of the North Carolina Eugenics Board.  Today's Reuters story quotes Republican Representative Paul Stam, the North Carolina House majority leader:

Whoever they are, they deserve compensation .... We owe it to them, not in a legal sense, but in a moral sense. It was a sad program that lasted for several decades and had its genesis in a philosophy that is alien to the American spirit.

Representative Tom Tillis focused on the state's role in making the case for payments: "We had elected officials and leaders who had the audacity to know what the great race was .... There are people living today, all around this community, who have had this done to them and we have a chance to put it at rest."

Next stop is the Senate.  As the Senate takes this up, I hope they will focus on a couple of key points -- that this was state action, done in most cases for the convenience of the state, so the state could save money; that many people at the time knew this was wrong, even though the dominant mindset in the state was that sterilization was for the improvement of the human race -- and in some cases the white race; and that compensation is only going to people who are still alive, so it goes to the most direct victims.  As to opposition at the time, here is a chapter from a book on sterilization in North Carolina published in 1950 that discusses the opposition to sterilization, particularly by people who're its likely victims.

If you'd like a brief sense of the sterilization mindset in North Carolina, here is a pamphlet published by the Eugenics Board, which details the case for sterilization and also contains the administrative forms at the end of the pamphlet, which show just how much this was turned into routine bureaucratic work.

My previous posts on North Carolina's history with sterilization and the movement for compensation are available here.

Dodd Frank Rulemaking Snapshot

Via Alphaville comes this snapshot, courtesy of Davis Polk, of Dodd Frank rulemaking progress (or lack thereof, depending on whether you’re a glass half full or half empty type of person).  The full Davis Polk Dodd Frank progress report is here.  

Taxation and Orwell's Animal Farm

 Indianapolis constructed sanitary sewers for a neighborhood and financed the project by a tax assessment of some $9,300 on each benefited parcel.  Owners could pay in one lump sum, or make monthly payments over 10, 20, or 30 years.  Several years later the city decided to use a different financing method -- issuance of bonds -- to pay for the improvements.  As part of this shift, the city forgave the unpaid installments, but refused to refund any part of the upfront payments made by some 38 owners.  In Armour v, City of Indianapolis the Supreme Court ruled that equal protection was not violated by the city's decision to treat these taxpayers unequally.  Why?  Because it was rationally related to the city's legitimate objective of avoiding administrative inconvenience.  What was the inconvenience?  The city would have had to continue to collect installment payments over the next 20 years or so.  Or, if the city chose not to do so, it would have to compute how much of a refund was due to upfront payers in this project as well as similar such projects.  But the city had already made that computation and it was a part of the record, so all it would have had to do was write and mail the checks.   The final "inconvenience" would have been to refund a total of about $300,000 out of a total annual budget of $900 million. 

But that's not all.  Indiana law requires that assessments of the type initially imposed be imposed equally, and Allegheny Pittsburgh Coal Co. v. County Commission, 488 U.S. 336 (1989), held that equal protection was violated by a locality's failure to comply with state law that required similar equality of treatment of property taxpayers.  Why the difference here?  The original assessments were equal -- everybody got charged $9,300 -- and Indiana law was silent on the question of refunds.  When the salami is sliced so thin that you can see through it, there's no salami. 

This travesty was authored by Justice Breyer, joined by Justices Kennedy, Ginsburg, Thomas, Sotomayor, and Kagan.  The dissent was written by Chief Justice Roberts, joined by Justices Scalia and Alito.  One might wonder why Justices Kennedy and Thomas joined.  Perhaps they thought that any decision invalidating government action under minimal scrutiny -- a/k/a "rational basis" -- would have a destabilizing effect on equal protection doctrine.  But that's a curious explanation for Justice Kennedy, who had little difficulty doing so in Romer v. Evans.  Justice Thomas's concurrence is more of a head-scratcher; perhaps he thought that striking down government actions as irrational would create precedent that might be used to strike down other government actions under minimal scrutiny.  We won't know; we can only guess.  But what we do know is that under Indiana law all taxpayers are equal, but under the equal protection clause some taxpayers are more equal than others.  Orwell would relish the result. 

Constructive Racial Loyalty?

I post here far less frequently than I ought, but guest-blogger Brando Simeo Starkey's recent post asking whether a man named Julius Henson is a traitor to his race rouses me from my blogging slumber.

I wish to comment on only one of several troubling facets to the post:  history has shown, many times over and in countless racial and religious contexts, that calls for racial solidarity of this sort (and for reproaching those who breach it) end in violence.  Murdered Jews alleged to have collaborated with the Nazis; severely beaten Japanese Americans branded as "inu" ("dogs") in the WWII camps in the USA; hounded Palestinians alleged to have collaborated with Israeli occupation; and on and on.  

I seriously doubt that this is what Professor Starkey has in mind, of course, but to call for "constructive racial loyalty" without taking account of how often such calls produce destructive behavior seems to miss an important part of the picture.

 

Charles Lawrence, Unconscious Bias, and Why an Equal Protection Cultural Meaning Test Is a Bad Idea

I was taking a look at the most-cited law review article and noticed that a favorite article of mine is #8 -- Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317 (1987).  The article is great and I have cited to it often.  For those who don’t know, Lawrence argues that because discrimination is often unconscious, claimants should not have to prove intent under the Equal Protection Clause.  He offers a replacement to the Intent Doctrine, the cultural meaning test.  It is here where I disagree with Lawrence.  In this blog post, I’d like to explain why a cultural meaning test would be a bad idea.  I know it's a little "ambitious" for a "nobody" to outline why an iconic piece is wrong, but, you know, whatever...

“This test,” in Lawrence’s own words, “would evaluate governmental conduct to see if it conveys a symbolic message to which the culture attaches racial significance.”  According to Lawrence, under this test, judges would be akin to cultural anthropologists who would, in light of historical developments and current social contexts, assess whether governmental conduct furthers a racial meaning. 

While it has some merit, the cultural meaning test fails on a few levels.  First, it is counter-intuitive. Lawrence proffers a great argument over the course of 50 or so pages describing how racism is often unconscious, yet his test forces the very same people who he contends have unwittingly buried their biases to then search for the cultural meaning of certain behaviors.  . 

 Along those lines, Lawrence greatly overstates how obvious cultural meaning is in certain contexts.  Does Lawrence truly believe that he and Justice Scalia, for instance, will agree on the cultural meanings that governmental actions convey in varying contexts?  The effectiveness of the cultural meaning test, more pointedly, depends highly upon who’s behind the bench.  The test can work well if Lawrence is donning the long black robe.  But in the hands of others, specifically jurists who do not or choose not to see the salience of race, the cultural meaning test will produce the same results that so perturb Lawrence.

But, for the sake of argument, let’s say that judges will be able to discern history properly and find cultural meanings where they exist.  What Lawrence fails to appreciate is that there could be a cultural meaning in nearly everything that occurs in American society.  Lawrence makes the point that there is no history of using high fares to subjugate blacks thus a transportation fare increase carries no cultural meaning.  But there is no doubt that there is a sad legacy of using blacks’ lack of economic vitality to subjugate.  Take peonage for instance.  The entire scheme depended on blacks’ lack of wealth. Lawrence, in other words, is wrong.  One might find a cultural meaning in increased fares.

Lawrence erred in championing the cultural meaning test.  Rather, Lawrence’s detailing of unconscious bias should have led him to endorse an objective test.  Instead, he opted for a subjective one that ignores the important lesson his own article instructs: unconscious bias negatively impacts racial minorities’ ability to enjoy the fruits of American democracy.  If one believes that to be true, then it makes little sense to promote a standard that permits those same unconscious biases to continue to reign supreme.

I have my own intent fix. I'll blog about it later.

Greensboro Massacre

I was talking recently with my friend Jayne Thompson, who's writing a novel that touches on the November 3, 1979, Greensboro massacre.  That inspired a trip out to Greensboro to visit the site of the massacre and, a few blocks away, the cemetery where four of the five people who were killed are buried.

The massacre was a day before the Iran Hostage crisis began, so I think that goes a long way to explain why you've probably never heard of it.  The short version is that Klansmen showed up at an anti-Klan rally (run largely by the Communist Workers Party) in an African American neighborhood in Greensboro known as Morningside Homes and started killing demonstrators.  Even though there is extensive video evidence, no one was ever convicted in either the state or federal prosecutions that followed.  More recently the Greensboro truth and reconciliation commission revisited those events and their aftermath.

I am interested in the motivations, politics, and possibilities of TRCs, though I am also skeptical of them.  Someone commenting about Greensboro a few years back said something like, it's the usual crowd coming together -- Nuns, Reconstruction Rabbis, Unitarian and UCC ministers, some Quakers, and social workers.  (And one might add community activists and perhaps even a law professor or two.)  My sense from a distance is that the people on the TRC did a very good job of gathering the evidence and shifting through what happened and of making some serious efforts towards reconciliation.  There was -- quite unsurprisingly -- little engagement from the crowd who committed the attrocities, though at least one of them expressed remorse.  If you're interested in this, Lisa Magarrel and Joya Wesley wrote a very good book on the Greensboro TRC, which I think has the potential to get other communities to follow in the wake of Greensboro.

Yet -- and this is what's motivating this post -- I'm not sure that we have even the most basic issue for a TRC: truth.  For as I was trying to figure out where the massacre occured so I could go visit it, I turned to my usual starting point for research: wikipedia.  The wikipedia entry for the Greensboro massacre makes it almost sound like the demonstrators were to blame for starting the violence that day.  Nor does it portray in detail the complicity of the city.  What for me is perhaps the most harrowering of many disturbing stories, though, is the breakdown of the rule of law in the aftermath of the massacre.  The local prosecutor seems to have suffered from a lack of resolve in the prosecutions, though I have no sense that mattered to the outcome of the trial.  So I am bothered that even now we do not have an accurate public history of the massacre.  I hope to return to several issues here down the road, including the case for making a moral claim on the city by the victims' family members, perhaps even now; the difficulty of telling an accurate history of racial crimes; and whether anything else should or could be done now.

The photo is the tombstone in Greensboro's Maplewood Cemetery.  If you're interested in visiting the site of the massacre or the cemetery, here is UNC-G's tour.  (But note that you go RIGHT, not left, at the first intersection in the cemetery to get to the tombstone.)